Michael Geisthttp://www.michaelgeist.ca
Tue, 26 Sep 2017 14:33:03 +0000en-UShourly1https://wordpress.org/?v=4.8.270762648http://creativecommons.org/licenses/by-nc-sa/2.0/http://creativecommons.org/licenses/by-nc-sa/2.0/http://creativecommons.org/images/public/somerights20.gifSome Rights ReservedMichaelGeistsBloghttps://feedburner.google.comEuropean Commission Backed Study Confirms Canada Among the Most Expensive for Broadband Internet Accesshttp://feedproxy.google.com/~r/MichaelGeistsBlog/~3/Fmfd8cDjTxs/
http://www.michaelgeist.ca/2017/09/european-commission-backed-study-confirms-canada-among-expensive-broadband-internet-access/#respondTue, 26 Sep 2017 14:33:03 +0000http://www.michaelgeist.ca/?p=11266The European Commission has released a new study it commissioned on broadband pricing in Europe and several other leading countries. It confirms yet again what Canadian consumers have long suspected: Canada is among the most expensive countries in the developed economy world for broadband Internet services. The study, which provides data on the 2016 retail pricing for consumers throughout the EU, Canada, the U.S., Japan, South Korea, Norway, and Iceland, found Canadians consistently face some of the most expensive pricing regardless of speed or whether the packages include local telephone and television services. The survey was conducted over a two-week period in October 2016 and included retail pricing for five major Canadian ISPs: Bell, Shaw, Rogers, Videotron, and Telus. The data includes procedures to account for one-off fees and other discounts.

]]>The European Commission has released a new study it commissioned on broadband pricing in Europe and several other leading countries. It confirms yet again what Canadian consumers have long suspected: Canada is among the most expensive countries in the developed economy world for broadband Internet services. The study, which provides data on the 2016 retail pricing for consumers throughout the EU, Canada, the U.S., Japan, South Korea, Norway, and Iceland, found Canadians consistently face some of the most expensive pricing regardless of speed or whether the packages include local telephone and television services. The survey was conducted over a two-week period in October 2016 and included retail pricing for five major Canadian ISPs: Bell, Shaw, Rogers, Videotron, and Telus. The data includes procedures to account for one-off fees and other discounts.

While the focal point of the study is European broadband pricing, the comparative data tells a discouraging story for Canadian consumers. The study examines several tiers: 12 – 30 Mbps, 30 – 100 Mbps, and over 100 Mbps. For each tier, the study considers several options: standalone broadband, broadband + local telephone, broadband + television, and a triple play that includes broadband, local telephone, and television.

Canadian pricing is expensive relative to others for most tiers and options. For example, broadband in the 30 – 100 Mbps range covers the CRTC’s target of 50 Mbps for all Canadians. Standalone broadband at that speed range is the most expensive in Canada with pricing far higher than those found in Europe, Japan, South Korea, or the U.S. The same is true for most combinations where Canada is the highest for broadband + television and broadband + local telephone + television. Canada is similarly expensive in the 12 – 30 Mbps tier, where Canadian prices are either the highest or second highest (to the U.S.) in each combination. Canada ranks as the second most expensive market for all combinations in the fastest broadband tier.

Innovation, Science and Economic Development Minister Navdeep Bains has focused on wireless affordability, emphasizing that the market suffers from high pricing and a lack of competition. The wireless sector remains a significant problem, but affordable broadband is also a significant concern. Studies on the issue invariably reach the same conclusion: Canadian prices are high relative to other developed countries. If the government is serious about fostering an innovative economy with opportunities for all, addressing the need for affordable broadband and competitive pricing must be a key priority.

]]>http://www.michaelgeist.ca/2017/09/european-commission-backed-study-confirms-canada-among-expensive-broadband-internet-access/feed/011266http://www.michaelgeist.ca/2017/09/european-commission-backed-study-confirms-canada-among-expensive-broadband-internet-access/An Industry Divided: How Bell Broke With the Telecom Sector on Copyrighthttp://feedproxy.google.com/~r/MichaelGeistsBlog/~3/hh8JM-ejvlQ/
http://www.michaelgeist.ca/2017/09/bellcopyrightpolicy/#commentsMon, 25 Sep 2017 13:48:20 +0000http://www.michaelgeist.ca/?p=11261The news that Bell has called on the Canadian government to support radical copyright reform in NAFTA that includes North America-wide mandatory website blocking (to be overseen in Canada by the CRTC) and the full criminalization of copyright represents only the latest step in the transformation of the company into one of Canada's most aggressive copyright lobbyists and litigators. The Bell proposals go beyond what even the CACN, Canada's anti-counterfeiting lobby group, has recommended. While copyright lobbying has been led for years by the movie and music industries, Bell has now broken with most other communications companies on copyright policy with policies barely distinguishable from the RIAA or MPAA. In recent years, it has argued against VPN use, used the courts to target a wide range of sites and services, lobbied for copyright reform in trade deals, and become the only telecom company in the world to join the Alliance for Creativity and Entertainment.

]]>The news that Bell has called on the Canadian government to support radical copyright reform in NAFTA that includes North America-wide mandatory website blocking (to be overseen in Canada by the CRTC) and the full criminalization of copyright represents only the latest step in the transformation of the company into one of Canada’s most aggressive copyright lobbyists and litigators. The Bell proposals go beyond what even the CACN, Canada’s anti-counterfeiting lobby group, has recommended. While copyright lobbying has been led for years by the movie and music industries, Bell has now broken with most other communications companies on copyright policy with policies barely distinguishable from the RIAA or MPAA. In recent years, it has argued against VPN use, used the courts to target a wide range of sites and services, lobbied for copyright reform in trade deals, and become the only telecom company in the world to join the Alliance for Creativity and Entertainment.

When the Canadian Recording Industry Association launched file sharing lawsuits against individual Canadians in 2004, Bell initially adopted a neutral position, neither opposing the suits nor supporting them (Shaw and Telus were far more committed to protecting their customers’ privacy). Over the years, Bell typically sided with other ISPs, zealously safeguarding its positions as an intermediary in the Supreme Court of Canada’s SOCAN v. CAIP decision and successfully fighting for fair dealing in the 2012 SOCAN v. Bell ruling. During the 2009 national consultation on copyright, Bell attended a Toronto public roundtable and expressed support for the positions of the Business Coalition for Balanced Copyright (which featured telecom companies as members and which voiced support for fair use and appropriate limits on digital locks).

Bell’s public positions on copyright are far different today. George Cope, BCE’s CEO, famously switched “from a telecom network guy to media guy” in 2010, when he viewed the Winter Olympics female gold medal hockey game on his cellphone. The media side of its business represents only 12 percent of its revenues (adding TV distribution would increase that percentage), but the company now acts like an old guard media company when it comes to copyright. Former Bell Media Presidents Kevin Crull and Mary Ann Turcke took aim at VPN use in 2015, with Turcke claiming that using a VPN to access U.S. Netflix constituted theft. Data suggested that infringement rates were dropping dramatically on the Bell network, but Bell became active in the courts with lawsuits against distributors of digital TV boxes and the website TVAddons, a Kodi TV site. The ongoing suit against TVAddons was particularly newsworthy, as a federal court judge found that the true purpose was to “destroy the livelihood of the defendant.”

Earlier this year, Bell became an inaugural member of the Alliance for Creativity and Entertainment, a new anti-piracy group. Membership costs Bell US$200,000 annually, for which it gets to suggest targets for law enforcement and to utilize the MPAA’s anti-piracy resources. Bell the only Canadian company in the motion picture association backed alliance.

Bell’s emergence as one of Canada’s most aggressive copyright lobbyists and litigators has major implications for future copyright reform in Canada. Leaving aside its enormously problematic NAFTA proposals, Bell seems likely to split from the rest of the industry when it comes to future copyright reform issues. While Rogers, Telus, and the rest of the telecom and ISP industry are likely to maintain support for copyright balance (including intermediary safe harbours and the notice-and-notice system), Bell may focus on greater enforcement activities, with its support for website blocking and increased criminalization of copyright the most obvious manifestation of its changing policy position.

]]>http://www.michaelgeist.ca/2017/09/bellcopyrightpolicy/feed/111261http://www.michaelgeist.ca/2017/09/bellcopyrightpolicy/Bell Calls for CRTC-Backed Website Blocking System and Complete Criminalization of Copyright in NAFTAhttp://feedproxy.google.com/~r/MichaelGeistsBlog/~3/hHPbYr4xnUU/
http://www.michaelgeist.ca/2017/09/bell-calls-crtc-backed-website-blocking-system-complete-criminalization-copyright-nafta/#commentsFri, 22 Sep 2017 19:31:02 +0000http://www.michaelgeist.ca/?p=11258Bell, Canada's largest telecom company, has called on the government to support radical copyright and broadcast distribution reforms as part of the NAFTA renegotiation. Their proposals include the creation of a mandated website blocking system without judicial review overseen by the CRTC and the complete criminalization of copyright with criminal provisions attached to all commercial infringement. Bell also supports an overhaul of the current retransmission system for broadcasters, supporting a "consent model" that would either keep U.S. channels out of the Canadian market or dramatically increase their cost of access while maintaining simultaneous substitution.

]]>Bell, Canada’s largest telecom company, has called on the government to support radical copyright and broadcast distribution reforms as part of the NAFTA renegotiation. Their proposals include the creation of a mandated website blocking system without judicial review overseen by the CRTC and the complete criminalization of copyright with criminal provisions attached to all commercial infringement. Bell also supports an overhaul of the current retransmission system for broadcasters, supporting a “consent model” that would either keep U.S. channels out of the Canadian market or dramatically increase their cost of access while maintaining simultaneous substitution.

The Bell positions were articulated at hearing this week of the Standing Committee on International Trade on NAFTA (I appeared earlier in the week before the same committee). The first hour included representatives from both Rogers and Bell. The Rogers position on copyright struck a reasonable balance:

The 2012 Copyright Modernization Act was carefully developed by Parliament over many years and is designed to serve the interests of all Canadians in its balance between rights holders and uses of copyrighted works. We are concerned that a trade renegotiation, where copyright issues are used as bargaining chips, could endanger this delicate balance. In our view, any changes to our domestic copyright laws should be made through the upcoming five-year review of the Copyright Modernization Act, not through the NAFTA renegotiation.

In other words, Rogers believes that changes to Canadian copyright law should come through an open, public process, not behind closed doors in a trade negotiation.

By contrast, Bell took precisely the opposite approach, urging the government to use secretive trade discussions to establish copyright reforms that would be unlikely to ever garner public or policy support. Indeed, it seems likely that the only way Canada could end up with a mandated website blocking system overseen by the CRTC would be to cook it up in a trade negotiation.

Bell focused on piracy during its presentation, arguing that website blocking is the best solution:

Our view on how we solve the piracy problem is it is not sort of coming up with new technological measures, it’s blocking access to piracy. How do you do that? We would like to see measures put in place whereby all Internet service providers are required to block consumer access to pirated websites. In our view, that is the only way to stop it. So you would mandate all ISPs across the country to essentially block access to a black list of egregious piracy sites. That would be job number one.

How does Bell envision this working? When asked, Bell’s representative stated:

In our view it would be an independent agency that would be charged with that task. You certainly would not want ISPs acting as censors as to what content is pirate content. But, surely, an independent third party agency could be formed, could create a black list of pirate sites and then the ISPs would be required to block it. That is at a high level how we would see it unfolding, perhaps overseen by a regulator like the CRTC.

This is not a misprint. Bell would like the CRTC to police allegations of copyright infringement by overseeing a new website blocking agency charged with creating a block list. Incredibly, Bell’s proposal involves no court oversight, hoping to create a mandatory system for blocking websites that excludes the due process that comes from judicial review (raising obvious Charter of Rights and Freedoms concerns). Notably, Bell does not discuss that Canada already has a provision in the Copyright Act that allows rights holders to target websites that enable infringement.

Moreover, Bell also wants to introduce criminal liability for all commercial copyright infringement. During the opening remarks, it said “Canada should also create a criminal provision for any infringement of copyright, including facilitating and enabling piracy where it is undertaken for commercial purpose.” Since Canada already has a provision to target sites that enable infringement, Bell’s goal is to dramatically expand the prospect of criminal liability for infringement by opening the door to criminal sanction for all commercial copyright infringement. Since some groups have argued that even non-commercial activity could have a commercial impact, the proposal could conceivably capture a wide range of common activities. As with the mandated website blocking proposal, Bell is hoping that the government support inclusion of criminal copyright in NAFTA, thereby ensuring that it does not go through the same policy and public review as other copyright reforms.

The Bell proposals (which sit alongside broadcast distribution proposals that would enshrine simultaneous substitution in NAFTA and create the prospect of blocked U.S. channels under a consent model) suggest that the company’s position as a common carrier representing the concerns of ISPs and their subscribers is long over. Instead, Bell’s copyright advocacy goes beyond what even some U.S. rights holders have called for, envisioning new methods of using copyright law to police the Internet with oversight from the CRTC and implementing such provisions through NAFTA.

]]>http://www.michaelgeist.ca/2017/09/bell-calls-crtc-backed-website-blocking-system-complete-criminalization-copyright-nafta/feed/3011258http://www.michaelgeist.ca/2017/09/bell-calls-crtc-backed-website-blocking-system-complete-criminalization-copyright-nafta/Canada’s NAFTA IP and E-commerce Priorities: My Appearance Before the Standing Committee on International Tradehttp://feedproxy.google.com/~r/MichaelGeistsBlog/~3/UdpZIptnwcs/
http://www.michaelgeist.ca/2017/09/canadas-nafta-ip-e-commerce-priorities-appearance-standing-committee-international-trade/#commentsTue, 19 Sep 2017 14:04:58 +0000http://www.michaelgeist.ca/?p=11254The House of Commons Standing Committee on International Trade has been conducting hearings on the NAFTA negotiations. I appeared before the committee yesterday on a panel that included the dairy industry, food and beverage sector, and my comments on IP and e-commerce. The MPs showed considerable interest in both IP and e-commerce, asking questions about notice-and-notice, fair use, copyright balance, the public domain, and the privacy implications of the e-commerce chapter. My opening remarks are posted below.

]]>The House of Commons Standing Committee on International Trade has been conducting hearings on the NAFTA negotiations. I appeared before the committee yesterday on a panel that included the dairy industry, food and beverage sector, and my comments on IP and e-commerce. The MPs showed considerable interest in both IP and e-commerce, asking questions about notice-and-notice, fair use, copyright balance, the public domain, and the privacy implications of the e-commerce chapter. My opening remarks are posted below.

Appearance before the House of Commons Standing Committee on International Trade, September 18, 2017

Good afternoon. My name is Michael Geist. I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. I appear today in a personal capacity representing only my own views.

There is much to say about NAFTA – I have written numerous articles and posts on the agreement – but I have limited time so I’ll focus on the intellectual property chapter with a brief additional comment on the e-commerce chapter.

While Canada is accustomed to “playing defence” to U.S. intellectual property demands in trade talks, this round of renegotiation offers the chance to pro-actively ensure that Canadian IP priorities and policies are reflected in the agreement. To place the IP issue in context, over the past five years, Canada has implemented anti-circumvention laws similar to those found in the U.S., added stronger enforcement measures, enacted anti-counterfeiting laws, extended the term of protection for sound recordings, and engaged in patent and trademark reforms.

It should therefore be recognized that Canada already meets its international IP obligations and has largely addressed previous U.S. demands regarding further reforms. At a broad level, the Canadian negotiating goal should be to retain an appropriate IP balance that fosters creativity and access, while ensuring that there is room for Canadian-specific policies that sit within the flexibilities of the international IP framework.

What might that look like? I’d raise five points.

First, Canada should insist on the inclusion of language on maintaining balance across all IP rights, the legitimate interests of users, promoting access to and preserving the public domain, ensuring that IP rights do not create barriers to legitimate trade, and facilitating access to affordable medicines. Similar language was raised during the TPP negotiations and it belongs in NAFTA.

Second, the availability of U.S. fair use represents a significant competitive advantage for U.S. businesses and creators. To ensure a level playing field for innovation, the NAFTA IP chapter should require that all parties feature a fair use or fair use equivalent provision.

Third, Canadian copyright law’s anti-circumvention provisions are among the most restrictive in the world and badly undermine the traditional copyright balance in the digital world creating unnecessary restrictions on innovation. While the Canadian exceptions were narrowly constructed and limited to a handful of circumstances, the U.S. has actually been expanding its digital lock exceptions. The imbalance in exceptions creates an uneven playing field for innovation and should be remedied within NAFTA.

Fourth, the NAFTA IP chapter should also address the abuse of intellectual property rights that may inhibit companies from innovating or discourage Canadians from taking advantage of the digital market. The benefits of an anti-IP abuse law could be used to touch on patents, trademarks, and copyright.

Fifth, one of the chief concerns with past trade negotiations is the expectation that the U.S. requires other countries to mirror its IP laws, even if those laws extend far beyond international law requirements. The Canadian approach should be to require NAFTA parties to meet international law, but to retain the full flexibility found within those laws. For example, the term of copyright in Canada is presently life of the author plus an additional 50 years, a term compliant with the international standard set by the Berne Convention.

I recently conducted research on the role of copyright term and the public domain in Canadian schools using data obtained by the Ontario Book Publishers Organization. According to data submitted by hundreds of school teachers and school districts, half of the most popular books taught in Grades 7 – 12 are in the public domain or about to enter it. If we extend the term of copyright, dozens of books used by thousands of students today that are scheduled to enter the public domain would be shut out for decades. The prospect of using those books in new and innovative ways without the need for further licensing or royalties – as well as increasing access in open electronic form – would be lost for a generation. These are crucial IP issues and should not be overlooked.

My time is limited to discuss the e-commerce chapter in these opening remarks and I would welcome the chance to do so during questions. I would only note that Canada should be wary of provisions that undermine legitimate public policy interests, including privacy and security.

The U.S. has identified restrictions against local data storage – often called data localization – as one of its objectives. The Canadian government should resist efforts within NAFTA to limit the ability of federal or provincial governments to establish legitimate privacy and security safeguards through data localization requirements.

Limitations on data transfer restrictions, which mandate the free flow of information on networks across borders, raises similar concerns. While the U.S. is seeking a ban on data transfer restrictions, Canada should ensure that privacy and security laws will not be superseded by NAFTA restrictions. In fact, throughout the e-commerce chapter, Canada should seek higher level privacy protections and e-commerce regulations.

]]>http://www.michaelgeist.ca/2017/09/canadas-nafta-ip-e-commerce-priorities-appearance-standing-committee-international-trade/feed/711254http://www.michaelgeist.ca/2017/09/canadas-nafta-ip-e-commerce-priorities-appearance-standing-committee-international-trade/Why Copyright Term Matters: Publisher Study Highlights Crucial Role of the Public Domain in Ontario Schoolshttp://feedproxy.google.com/~r/MichaelGeistsBlog/~3/4HtQhvvRVKA/
http://www.michaelgeist.ca/2017/09/copyright-term-matters-publisher-study-highlights-crucial-role-public-domain-ontario-schools/#commentsThu, 14 Sep 2017 13:58:22 +0000http://www.michaelgeist.ca/?p=11251The Ontario Book Publishers Organization recently published a study funded by the OMDC on the use of Canadian books in English classes in Ontario Public and Catholic schools from Grades 7 to 12. The study surveyed teachers and school boards on which books (including novels, short story collections, creative non-fiction, poetry and plays but not textbooks) are taught in English classes. The goal was to see whether Canadian books were included in class lists. The survey generated hundreds of responses (27 from school board participants and 280 from the Ontario Teachers Federation) resulting references to 695 books by 539 authors.

The OBPO argued that the takeaway from the study is that Canadian books are not well represented in Canadian classrooms since less than a quarter of the mentions referred to a Canadian work and none of the top 10 works were Canadian. While that suggests that there is considerable room to increase the presence of Canadian works in the classroom, the data in the study can be used for other purposes. Working with Sydney Elliott, one of my research assistants, we reviewed the OBPO data to identify the presence of public domain works in Ontario classrooms (ie. the use of works for which the term of copyright has expired).

]]>The Ontario Book Publishers Organization recently published a study funded by the OMDC on the use of Canadian books in English classes in Ontario Public and Catholic schools from Grades 7 to 12. The study surveyed teachers and school boards on which books (including novels, short story collections, creative non-fiction, poetry and plays but not textbooks) are taught in English classes. The goal was to see whether Canadian books were included in class lists. The survey generated hundreds of responses (27 from school board participants and 280 from the Ontario Teachers Federation) resulting references to 695 books by 539 authors.

The OBPO argued that the takeaway from the study is that Canadian books are not well represented in Canadian classrooms since less than a quarter of the mentions referred to a Canadian work and none of the top 10 works were Canadian. While that suggests that there is considerable room to increase the presence of Canadian works in the classroom, the data in the study can be used for other purposes. Working with Sydney Elliott, one of my research assistants, we reviewed the OBPO data to identify the presence of public domain works in Ontario classrooms (ie. the use of works for which the term of copyright has expired).

The results were striking as the data confirms that public domain books are an essential part of the English curriculum. Of the top 20 titles, half are in the public domain today or will enter the public domain within the next few years. William Shakespeare is unsurprisingly responsible for many of these titles, but he is not alone. Other very popular public domain works include books by F. Scott Fitzgerald and George Orwell along with books by John Wyndham and John Steinbeck that will enter the public domain in Canada by the end of the decade.

The importance of the public domain within the classroom extends far beyond the most popular works, however. The survey identified 99 books that received at least four separate mentions from respondents. Of those 99 books, 20 are in the public domain and two more will enter the public domain shortly. This covers a wide range of additional authors including Huxley, Conrad, Shelley, Bronte, and McNamee. These books are widely used as they represent 35% of the total mentions. Expanding even further to the entire list of 695 books, 96 are in the public domain or about to enter it.

Despite efforts by some to dismiss its value, the widespread use of public domain works within Canadian classrooms underscores its continued relevance. It also raises two important policy issues. First, it reinforces how many of the works used in classrooms fall outside of current copyright protection and not are not subject to licence fees or royalties. In fact, as the Ontario government emphasizes the benefits of open electronic textbooks, using public domain works will become even more essential since they can be fully incorporated into open electronic texts without the need for licenses or permissions and can be made more readily accessible in electronic form for blind and sight impaired students.

Second, there is another large category of works currently used in Canadian classrooms beyond the nearly 100 public domain titles. Our review identified another 27 titles that are scheduled to enter the public domain within the next 20-25 years including works from authors and poets such as Agatha Christie, J.R.R. Tolkein, and W.H. Auden. These works – which appear regularly on class lists – would be directly affected should Canada agree to extend the term of copyright as part of the NAFTA negotiations. With the U.S. pushing Canada to extend the term beyond the Berne Convention requirement of life of the author plus 50 years (to life plus 70), no new works would enter the public domain for 20 years (assuming it takes several years to negotiate and implement an extension, the extended term could catch works currently closer to 25 years away from public domain status).

This extension would have a real cost: a New Zealand study on term extension in the TPP estimated the cost at tens of millions of dollars per year. Within Canadian classrooms, dozens of books scheduled to enter the public domain would be shut out for decades. These are books that are used by thousands of students today. The prospect of using those books in new and innovative ways without the need for further licensing or royalties – as well as increasing access in open electronic form – would be lost for a generation.

Recent reports indicate that efforts to revive the TPP may involve the removal of the provisions on copyright term extension from that agreement. As Canada continues the NAFTA talks, it should resist any further term extension by continuing to adhere to the international treaty standard, recognizing that longer terms will have a direct impact on Canadian students, who are sometimes forgotten as among the most active readers of public domain works.

]]>http://www.michaelgeist.ca/2017/09/copyright-term-matters-publisher-study-highlights-crucial-role-public-domain-ontario-schools/feed/111251http://www.michaelgeist.ca/2017/09/copyright-term-matters-publisher-study-highlights-crucial-role-public-domain-ontario-schools/Why Has the Government Failed to Act on Copyright Notice-and-Notice When Internal Docs Raise Abuse and Fraud Concerns?http://feedproxy.google.com/~r/MichaelGeistsBlog/~3/YA-20D1ZgTQ/
http://www.michaelgeist.ca/2017/09/government-failed-act-copyright-notice-notice-internal-docs-raise-abuse-fraud-concerns/#commentsWed, 13 Sep 2017 13:20:06 +0000http://www.michaelgeist.ca/?p=11245Canada's copyright notice-and-notice system has been the subject of controversy and misuse since the moment it launched in 2015. The system was intended to educate the public on copyright and reduce infringing activity through awareness (experience indicated the approach worked), but has been misused by copyright owners who have used it to send millions of settlement demands to unsuspecting Canadians. The misuse of the system was even the subject a question to Prime Minister Justin Trudeau during question period earlier this year.

While fixing the problem should be relatively easy - new regulations could prescribe precisely what may be included in the notice or there could be a prohibition on including settlement offers or demands within the notices - but the government has dragged its feet on the issue. The Conservatives knew there was a problem, but instead chose to prioritize extending the term of copyright for sound recordings after a behind-the-scenes lobbying campaign. The Liberals have similarly not acted on the issue, putting Copyright Board reform ahead in the queue.

]]>Canada’s copyright notice-and-notice system has been the subject of controversy and misuse since the moment it launched in 2015. The system was intended to educate the public on copyright and reduce infringing activity through awareness (experience indicated the approach worked), but has been misused by copyright owners who have used it to send millions of settlement demands to unsuspecting Canadians. The misuse of the system was even the subject a question to Prime Minister Justin Trudeau during question period earlier this year.

While fixing the problem should be relatively easy – new regulations could prescribe precisely what may be included in the notice or there could be a prohibition on including settlement offers or demands within the notices – but the government has dragged its feet on the issue. The Conservatives knew there was a problem, but instead chose to prioritize extending the term of copyright for sound recordings after a behind-the-scenes lobbying campaign. The Liberals have similarly not acted on the issue, putting Copyright Board reform ahead in the queue.

The issue may have languished, but documents recently obtained under the Access to Information Act confirm that government officials believe that sending settlement demands is inconsistent with the original policy intent. Moreover, the documents reveal that the Ministry of Innovation, Science, and Economic Development has been receiving anxious calls for consumers and that it is aware of industry concerns about fraudulent notices by parties impersonating copyright holders. The government memo from 2016, written as advice to ISED Minister Navdeep Bains, states:

Soon after the regime entered into force in January 2015, controversy arose over the practice of some copyright owners (or their agents) of including settlement demands within their notices, urging the consumer to avoid threatened legal action. The sending of such notices could lead to abuses, given that consumers may be pressured into making payments even in situations where they have not engaged in any acts that violate copyright laws.

The memo continues:Officials signalled to stakeholders early on that the sending of such notices to consumers is not consistent with the underlying policy intent, and many of the participants in the regime, including key organizations representing copyright owners, have indicated that they do not support the use of settlement demands. Internet intermediaries complain, however, that the current legislative framework does not expressly prohibit this practice and that they feel compelled to forward on such notices to their subscribers when they receive them from copyright owners.

The memo notes that “consumer anxiety over such notices has been apparent in inquiries received from ISED’s call centre and in media reports.” The department also raises concerns about fraudulent notices:According to ISPs, this problem is compounded by instances of fraudulent notices being sent to consumers by individuals impersonating actual copyright owners. Such notices are likely being sent to consumers in the hopes of extracting payments under the guise of settling infringement claims.

Given the awareness of the misuse of the system and vulnerability of thousands of Canadians, why has the government done nothing to address the issue? Officials know the system is being misused and that consumers are being victimized by unwarranted and potentially fraudulent settlement demands. Yet the misuse of notice-and-notice has been going on for 2 1/2 years with no action on what amounts to an easy fix. There is no reason to wait another year or two for the copyright review to run its course to address the issue. If the government can prioritize fixing the Copyright Board, it can also ensure that Canadians are no longer unfairly targeted through a system prone to abuse.

]]>http://www.michaelgeist.ca/2017/09/government-failed-act-copyright-notice-notice-internal-docs-raise-abuse-fraud-concerns/feed/411245http://www.michaelgeist.ca/2017/09/government-failed-act-copyright-notice-notice-internal-docs-raise-abuse-fraud-concerns/The NAFTA E-commerce Chapter: Ensuring the New Chapter Reflects Canadian Prioritieshttp://feedproxy.google.com/~r/MichaelGeistsBlog/~3/xEnxPGssdqE/
http://www.michaelgeist.ca/2017/08/nafta-e-commerce-chapter-ensuring-new-chapter-reflects-canadian-priorities/#commentsThu, 17 Aug 2017 13:56:57 +0000http://www.michaelgeist.ca/?p=11241Canadian Foreign Minister Chrystia Freeland outlined Canada's NAFTA negotiating objectives in talk earlier this week, identifying the need to modernize NAFTA so that "all sectors of our economy can reap the full benefits of the digital revolution." I posted yesterday on how the IP chapter could be used to level the playing field for innovation. This post discusses how the new e-commerce chapter, which will be the most obvious manifestation of a modernized NAFTA, offers the opportunity to address an increasingly important aspect of modern cross-border commercial activity.

]]>Canadian Foreign Minister Chrystia Freeland outlined Canada’s NAFTA negotiating objectives in talk earlier this week, identifying the need to modernize NAFTA so that “all sectors of our economy can reap the full benefits of the digital revolution.” I posted yesterday on how the IP chapter could be used to level the playing field for innovation. This post discusses how the new e-commerce chapter, which will be the most obvious manifestation of a modernized NAFTA, offers the opportunity to address an increasingly important aspect of modern cross-border commercial activity.

The policy behind an e-commerce chapter should be to facilitate modern, electronic commerce. Canada should be wary of provisions that undermine legitimate public policy interest, including privacy and security. This concern is particularly pronounced with respect to restrictions on data localization and data transfers, both identified by the USTR as issues of concern. Further, Canada should seek higher level privacy protections and e-commerce regulations in NAFTA.

The Implications of NAFTA for Privacy and Security

The U.S. has identified restrictions against local data storage – often called data localization – as one of its objectives. The issue originates from Silicon Valley tech company frustration with a growing number of governments that want local data to remain within their jurisdiction. The reason for data localization requirements typically stem from mounting concerns over U.S. surveillance activities and the power granted to U.S. law enforcement under laws such as the USA Patriot Act.

The combined effect of these U.S. laws is that many users fear that once their information is stored in the U.S., it will be accessible to U.S. authorities without suitable privacy protections or oversight. Since U.S. law provides less privacy protection to foreigners, there is indeed limited legal recourse for Canadian data held in the U.S. Provinces such as British Columbia and Nova Scotia have enacted laws to keep government information (such as health data) within the country.

In response to the mounting public concerns, leading technology companies such as Microsoft, Amazon, and Google have established or committed to establish Canadian-based computer server facilities that can offer localization of information. These moves follow on the federal government’s 2016 cloud computing strategy that prioritizes privacy and security concerns by mandating that certain data be stored in Canada. The Canadian government should resist efforts within NAFTA to limit the ability of federal or provincial governments to establish legitimate privacy and security safeguards through data localization requirements.

Limitations on data transfer restrictions, which mandate the free flow of information on networks across borders, raises similar concerns. Those rules are important to preserve online freedoms in countries that have a history of cracking down on Internet speech, but in the Canadian context, could restrict the ability to establish privacy safeguards. In fact, should the European Union mandate data transfer restrictions as many experts expect, Canada could find itself between a proverbial privacy rock and a hard place, with the EU requiring restrictions and NAFTA prohibiting them. While the U.S. is seeking a ban on data transfer restrictions, Canada should ensure that privacy and security laws will not be superseded by NAFTA restrictions.

Using NAFTA To Safeguard Privacy Protections

Privacy protections are a key aspect of e-commerce, providing consumers with assurances that their personal information will be appropriately safeguarded. A renegotiated NAFTA should include a high level privacy protection requirement. The starting point for privacy protection in most countries is a national privacy law modeled on the OECD privacy principles. Enforcement measures are frequently handled by privacy or data protection commissioners with some form of enforcement powers as well as additional rules on issues such as mandatory disclosure of security breaches. A privacy requirement that extends beyond voluntary undertakings is essential for Canadians to have the necessary assurances that their information is properly protected and to place Canadian companies on a level playing field with their NAFTA counterparts.

NAFTA should also include mandatory anti-spam legislation as a national requirement. The provisions could specify that the law provide for a binding unsubscribe mechanism and an opt-in consent requirement, consistent with the Canadian anti-spam law. Other e-commerce laws, including consumer protection requirements and electronic contracting provisions, would be suitable for inclusion in an e-commerce chapter.

]]>http://www.michaelgeist.ca/2017/08/nafta-e-commerce-chapter-ensuring-new-chapter-reflects-canadian-priorities/feed/511241http://www.michaelgeist.ca/2017/08/nafta-e-commerce-chapter-ensuring-new-chapter-reflects-canadian-priorities/How Canada Can Use NAFTA’s IP Chapter to Level the Innovation Playing Fieldhttp://feedproxy.google.com/~r/MichaelGeistsBlog/~3/NUixTvyf8sM/
http://www.michaelgeist.ca/2017/08/canada-can-use-naftas-ip-chapter-level-innovation-playing-field/#commentsWed, 16 Aug 2017 13:44:29 +0000http://www.michaelgeist.ca/?p=11230The NAFTA renegotiation gets underway today, days after Canadian Foreign Minister Chrystia Freeland outlined Canada's NAFTA negotiating objectives. As her first core objective, Freeland identified modernizing NAFTA so that "all sectors of our economy can reap the full benefits of the digital revolution." Those comments suggest that the IP chapter and a new e-commerce chapter will be top negotiating priorities. I'll post on the e-commerce chapter tomorrow, but this post highlights my recent CIGI essay on how Canada can use the NAFTA intellectual property chapter to help level the innovation playing field.

]]>The NAFTA renegotiation gets underway today, days after Canadian Foreign Minister Chrystia Freeland outlined Canada’s NAFTA negotiating objectives. As her first core objective, Freeland identified modernizing NAFTA so that “all sectors of our economy can reap the full benefits of the digital revolution.” Those comments suggest that the IP chapter and a new e-commerce chapter will be top negotiating priorities. I’ll post on the e-commerce chapter tomorrow, but this post highlights my recent CIGI essay on how Canada can use the NAFTA intellectual property chapter to help level the innovation playing field.

While Canada is accustomed to “playing defence” to U.S. IP demands, this round of renegotiation offers the chance to pro-actively ensure that Canadian IP priorities and policies are reflected in the agreement. To place the IP issue in context, over the past five years, Canada has added anti-circumvention laws similar to those found in the U.S., added stronger enforcement measures (including the “enabler” provision for websites that facilitate infringement), enacted anti-counterfeiting laws, extended the term of protection for sound recordings, and engaged in patent and trademark reforms. When added to earlier reforms such as anti-camcording rules and recent court decisions that addressed U.S. concerns about Canadian patent rules, Canada has acquiesced to many IP policy demands from the U.S.

As Canada embarks on a new round of NAFTA talks, it should be recognized that Canada already meets its international IP obligations and has largely addressed previous U.S. demands regarding further reforms. At a broad level, the Canadian negotiating goal should be to retain an appropriate IP balance that fosters creativity and access, while ensuring that there is room for Canadian-specific policies that sit within the flexibilities of the international IP framework.

The full CIGI piece identifies five opportunities: inclusion of balance as an IP objective, a fair use provision, anti-circumvention legislation exceptions, rules on IP abuse and misuse, and rejection of U.S. efforts to extend the term of copyright.

]]>http://www.michaelgeist.ca/2017/08/canada-can-use-naftas-ip-chapter-level-innovation-playing-field/feed/311230http://www.michaelgeist.ca/2017/08/canada-can-use-naftas-ip-chapter-level-innovation-playing-field/Good Politics, Bad Policy: Melanie Joly Sends TV Licensing Cancon Decision Back to the CRTChttp://feedproxy.google.com/~r/MichaelGeistsBlog/~3/mJ_AIyOfyEA/
http://www.michaelgeist.ca/2017/08/good-politics-bad-policy-melanie-joly-sends-tv-licensing-cancon-decision-back-crtc/#commentsTue, 15 Aug 2017 13:56:23 +0000http://www.michaelgeist.ca/?p=11235Canadian Heritage Minister Melanie Joly announced via Twitter yesterday that the government has asked the CRTC to reconsider its TV licensing decision from earlier this year that established a uniform broadcaster spending requirement of 5 percent on programs of national interest (PNI, which includes dramas, documentaries, some children's programming, and some award shows). The decision, which would lead to a reduction of mandated spending for some broadcasters, sparked a strong lobbying campaign from various cultural groups who claimed the decision would result in hundreds of millions in reduced spending on Canadian content. While the government's decision should not come as a surprise - siding with the creator groups against the CRTC makes political sense - no one should confuse it with good policy. Indeed, the reality is that the CRTC's belief that the digital market would create the right incentives for investment is increasingly borne out by recent developments that suggest Canadian broadcasters have few alternatives other than to develop their own original programming.

]]>Canadian Heritage Minister Melanie Joly announced via Twitter yesterday that the government has asked the CRTC to reconsider its TV licensing decision from earlier this year that established a uniform broadcaster spending requirement of 5 percent on programs of national interest (PNI, which includes dramas, documentaries, some children’s programming, and some award shows). The decision, which would lead to a reduction of mandated spending for some broadcasters, sparked a strong lobbying campaign from various cultural groups who claimed the decision would result in hundreds of millions in reduced spending on Canadian content. While the government’s decision should not come as a surprise – siding with the creator groups against the CRTC makes political sense – no one should confuse it with good policy. Indeed, the reality is that the CRTC’s belief that the digital market would create the right incentives for investment is increasingly borne out by recent developments that suggest Canadian broadcasters have few alternatives other than to develop their own original programming.

Reports of the decision have emphasized that CRTC broadcast rulings are rarely sent back by the government for reconsideration, but this particular case was a political no-brainer. The creator groups mobilized effectively and faced practically no opposition. The public had little reason to engage on an insider issue, the broadcasters offered only a tepid response months after the momentum for a reconsideration had been established (Bell, Canada’s largest broadcaster, presumably preferred to use its political capital on the Super Bowl simsub issue), and the CRTC changed chairs weeks after the decision was released making it unlikely the Commission would publicly or privately defend the ruling as the campaign against it unfolded.

Moreover, Joly needed a policy win for the cultural groups. Her digital Cancon policy is set to be unveiled next month and many of the groups applauding this ruling (Joly’s twitter feed is filled with dozens of such tweets) may be left disappointed. Joly launched the digital Cancon consultation in 2016 with talk of an export-led, digitally-relevant policy. That was the right vision, but she quickly found that many established creator groups were more interested in Netflix taxes, ISP taxes, and digital sales taxes. The government has largely taken those proposals off-the-table (a digital sales tax remains a possibility but revenues would go to Finance, not Heritage), meaning the strategy will likely emphasize promotion, cultural exports, administrative improvements, and long-term legislative reform of communications and copyright. That’s a reasonable formula (short term copyright reform will focus on the Copyright Board, which helps ensure that creators get paid), but it isn’t quite what some groups have in mind.

While the decision to refer the ruling back to the CRTC might make for good politics, it does little to address the issue of the creation and competitiveness of Canadian content in a digital world. As I noted earlier this year, industry data confirms that private broadcasters are relatively minor players when it comes to the financing of Canadian drama. The most recent CMPA report states:With fiction productions, the largest share of financing came from provincial and federal tax credits; the fiction genre also attracted the most foreign financing among all genres. Children’s and youth productions also derived the largest share of their financing from tax credits, followed by broadcaster licence fees. Distributors also accounted for an important part of the financing picture for the fiction, and children’s and youth genres. In the VAPA and lifestyle and human interest genres, most financing came from broadcaster licence fees.

Indeed, private broadcasters contribute only 9 percent of the financing for fictional programs, less than federal and provincial tax credits, Canadian distributors, foreign financing, and the CMF. Private broadcasters allocate much of their money toward variety and performing arts as well as “lifestyle and human interest” programming, which including magazine style shows. In other words, financing and the success or failure of Canadian programming such as dramas do not depend upon private broadcaster spending, regardless of where the CRTC sets the mandated percentage.

Moreover, recent events highlight why this is a fight over yesterday’s broadcasting world. The upcoming entry of new streaming services from U.S. giants such as CBS and Disney will continue to reshape the Canadian broadcasting landscape as U.S. content increasingly streams directly to Canadian viewers. Canadian broadcasters may still license those programs since they need to fill their schedules, but the programming will be available on a non-exclusive basis, giving consumers the real choice they have long been denied. The changes are not limited to dramatic programming as the sports world is also undergoing a massive transformation. For example, the exclusive rights to NFL Sunday Ticket now rests with DAZN, which is only available via Internet streaming. The Canadian cable and satellite companies will lose millions in revenue, while consumers can purchase the service for less than half of what they previously paid.

Fighting over mandated Cancon spending does little to address the emerging broadcast world in which consumers have far more choice and are no longer locked into the regulated broadcast system. The CRTC decision was developed with this future in mind as the changes were primarily designed to level the playing field for Canadian broadcasters in a market where success is determined by controlling original content. The CRTC ruling hoped to make it easier for Canadian broadcasters to compete with Netflix and the many other streaming services that operate without mandated content requirements.

The shift away from mandated spending is not a shift away from investment in Cancon, however. Netflix spends millions on production in Canada not because it faces a regulatory requirement (it doesn’t), but rather because the entire package – innovative creators, tax credits, good partners – offers a compelling reason for doing so. Indeed, the data shows that the Canadian industry has thrived in recent years for reasons that have little to do with pre-digital regulations with a huge shift in Canadian television production from domestic funding to foreign investment.

For Canadian broadcasters, the battle over mandated spending is premised on the notion that they will only invest in domestic programming if required to do so. Licensing cheaper foreign programming is understandably attractive, yet as that programming becomes available from multiple sources, the benefits of relying heavily on licensed U.S. content will diminish (and older regulatory rules such as simultaneous substitution will become less and less relevant). That means the long-term success of Canadian broadcasters will depend upon controlling original content that can be delivered through multiple channels and markets. Policy fights over mandated spending therefore miss the point. The market now encourages investment in original programming and it is up to Canadian creators and broadcasters to compete in a global market that offers new opportunities without the security blanket of outdated regulations that once typified the Canadian system.

]]>http://www.michaelgeist.ca/2017/08/good-politics-bad-policy-melanie-joly-sends-tv-licensing-cancon-decision-back-crtc/feed/111235http://www.michaelgeist.ca/2017/08/good-politics-bad-policy-melanie-joly-sends-tv-licensing-cancon-decision-back-crtc/Canadian Government Puts Copyright Board Overhaul on Fast Track With Consultation Launching Tomorrowhttp://feedproxy.google.com/~r/MichaelGeistsBlog/~3/3zHi7Xk0A2U/
http://www.michaelgeist.ca/2017/08/canadian-government-puts-copyright-board-overhaul-fast-track-consultation-launching-tomorrow/#commentsTue, 08 Aug 2017 18:25:42 +0000http://www.michaelgeist.ca/?p=11224The Canadian government is planning the most significant changes to the Copyright Board of Canada in decades with a consultation set to officially launch tomorrow. Given the longstanding concerns with the Board from creators and users alike, the government has decided to place board reform on a fast track that is separate from the broader copyright review scheduled to commence later this year. The consultation, which will outline potential reforms to address delays and case backlogs, will run until late September. Navdeep Bains, the Minister of Innovation, Science and Economic Development, working with Canadian Heritage, hopes to introduce a Copyright Board reform legislative and regulatory package in early 2018.

I spoke earlier today to Bains, who explained that the government believes there needs to be quicker decisions, greater transparency, and an effort to address the current backlog given concerns about ensuring creators are paid and in bringing new innovative service to the Canadian market. The consultation, being held jointly by ISED, Canadian Heritage and the Board, will identify several potential measures to address the board delays including case management processes, establishing new case deadlines, streamlining cases before the board, as well as giving the board more power to advance proceedings, award costs, and limit the ability for parties to delay proceedings.

]]>The Canadian government is planning the most significant changes to the Copyright Board of Canada in decades with a consultation set to officially launch tomorrow. Given the longstanding concerns with the Board from creators and users alike, the government has decided to place board reform on a fast track that is separate from the broader copyright review scheduled to commence later this year. The consultation, which will outline potential reforms to address delays and case backlogs, will run until late September. Navdeep Bains, the Minister of Innovation, Science and Economic Development, working with Canadian Heritage, hopes to introduce a Copyright Board reform legislative and regulatory package in early 2018.

I spoke earlier today to Bains, who explained that the government believes there needs to be quicker decisions, greater transparency, and an effort to address the current backlog given concerns about ensuring creators are paid and in bringing new innovative service to the Canadian market. The consultation, being held jointly by ISED, Canadian Heritage and the Board, will identify several potential measures to address the board delays including case management processes, establishing new case deadlines, streamlining cases before the board, as well as giving the board more power to advance proceedings, award costs, and limit the ability for parties to delay proceedings.

Bains also believes that increasing the speed of the process could be helped by reducing the number of matters the board hears. One of the most controversial proposals will likely be the possibility of enabling all collectives to enter into voluntary licensing agreements with users. The emphasis on voluntary private agreements would represent a significant shift that could impact the public interest role of the board and might require new oversight from both the board and the Commissioner of Competition as well as mandated public disclosure of private agreements. Moreover, the government is considering extending the timelines of tariffs to reduce the frequency of tariff renewals as well as measures to reduce the uncertainty that comes from retroactive application of tariffs. That might require collectives to file tariffs longer in advance thereby giving the board more time to make a determination before the effective date of the tariff.

The consultation will also raise the prospect of requiring collectives to provide more information about proposed tariffs. This could include:

the reasons for filing the proposed tariffs at the particular times they are filed

the practical uses or activities that are targeted

the types of users known to the collective society that are targeted

the proposed royalty rate and its related terms and conditions specific to each use or activity targeted

the grounds on which the proposed royalty rates, terms and conditions and effective periods have been determined

how the proposed tariffs substantially differ from any previously certified tariffs that the proposed tariffs are sought to renew

how the proposed tariffs relate to other certified tariffs, if any

how information reported by users pursuant to the proposed tariffs will be used.

Objectors could also be asked to provide additional information about their reasons for objection.

In addition to technical reforms to the board, the government wants to address ongoing transparency concerns. This could include codifying board procedures, making public the criteria considered by the board, and establishing a clear board mandate. The government is also open to new measures to increase public participation in board proceedings to restore confidence and may consider harmonizing the tariff-setting regimes in the Copyright Act. Funding issues or the size of the board are not addressed. Further, changes to the governance of collecting societies is being treated as beyond the scope of the consultation.

The decision to place Copyright Board reform on the fast track raises obvious questions about how it fits within the broader copyright review and innovation agenda. Bains confirmed that the government wants to move more quickly on the board issue than the broader review that will formally begin later this year. He noted that the government wants a “thoughtful, engaged and informed” copyright review that will likely take far longer than the Copyright Board process with a very different timeline. The government is open to addressing other copyright issues, including the ongoing abuses with the notice-and-notice system for Internet providers, in a more timely manner. Bains also acknowledged that there are definite linkages “between the changes and reforms in the Copyright Act, even including the Copyright Board process, which dovetails with the work [the government] is doing on innovation and skills development.”

Given that the issue has been simmering for years, the willingness to reform the board should enjoy general stakeholder support. The broader review of the Copyright Act will likely be far more contentious and wide ranging, with timelines that will require months of hearings to ensure that all stakeholders are given an opportunity to share their views. For now, the government is sending the signal that it recognizes the importance of copyright administration as it embarks on a long-overdue overhaul of the process and transparency of the Copyright Board of Canada.